Homosexuality in Halakhah II

As posted earlier, Zackary Sholem Berger was kind enough to post to his blog my comments on CR. Simchah Roth’s paper on homosexuality. ZS Berger also added his own super-comments onto my comments. The following is my response to ZS Berger:

1. Main Thesis

First and foremost, we must understand what S. Roth was trying to do in his paper. On p. 5 n. 26, S. Roth offers the following important statement:

Other Conservative respondents have made a case for a re-interpretation or new understanding of the relevant biblical verses. Of these the most important by far is the valiant responsum of Rabbi Bradley Shavit Artson, which was not accepted by the CJLS… My hesitation concerning his responsum is not regarding what I find in it but regarding what I do not find in it. My own preference, as I indicated in the preface, is to base this responsum on the way our sages and rabbis have understood these biblical verses and associated issues through the ages, without re-interpretation...

In other words, while CRS Roth accepts CRabbi Bradley Shavit Artson’s "re-interpretation" of the prohibition against homosexuality, his paper is an attempt to argue within a more traditional framework that does not espouse such re-interpretation.

Sholem, it seems to me from your response that you find CR. Artson’s re-interpretation to be correct. If so, you have no need for CRS Roth’s paper and, quite possibly, disagree with his entire premise. Indeed, his proposal is extremely bold. He is taking on the entire community of Orthodox scholars as well as the right wing of Conservative scholarship on their own turf. And, in my opinion, he does a poor job of it.

But before we return to CRS Roth’s main thesis, I would like to point to a flaw in CR. Artson’s argument. CR. Artson claims that the homosexual relationships in the ancient world, and the ones which the rabbis addressed, were unequal and abusive. There were no "constitutional homosexuals" who had equal, loving relationships and, therefore, neither the Torah nor the rabbis could have prohibited something that did not exist at the time.

I find this argument flawed for a number of reasons:

1. This assumes that the prohibition in the Torah was written by humans to address their contemporary world. I deny this because I believe that the Torah was written by God and addresses the world on many levels, at least one of them being eternal. Even those who believe that the Torah was only written under Divine inspiration and not dictated by God, would still agree that the Torah addresses more than just the contemporary ancient world. God can address relationships that did not exist at that time.

2. Even if loving homosexual relationships did not exist in the ancient world, the rabbis were renowned for their creativity and imagination. If they could conceive of such a relationship, then perhaps they were prohibiting it as well. CR. Artson has entirely failed to prove that the rabbis never addressed such a relationship.

3. There is an explicit and oft-quoted source that contradicts CR. Artson’s entire thesis. The Gemara in Hullin (92a-b) quotes Ulla (late 3rd, early 4th cen.) who praises the ancient nations for not writing a ketuvah, a marriage contract, for homosexuals. Similarly, the midrash Bereshit Rabbah (26:5) relates: "Rav Huna [said] in the name of Rav Yosef: ‘The generation of the flood was not obliterated until they wrote marriage contracts for males and animals.’" Marriages - loving, mutual relationships - between two men were conceivable to the rabbis of the Talmud and were unequivocally opposed by them. (See CR. Joel Roth’s paper on the subject, p. 7 on this subject.)

Thus, in my opinion, even if CR. Artson’s methodology was valid - which I do not concede - he has not proven his point. Furthermore, CRS. Roth has not proven his point in the traditional halakhic realm. So we are left with a conservative, strict approach.

2. Politics of Science

I am not a psychologist or a psychiatrist. But I am not deaf, dumb and blind either. There is unquestionably a good deal of politics involved in the science of homosexuality. There are serious professionals with different opinions on homosexuality and claiming that there are not is as equally a willful denial as claiming that all professionals agree that homosexuality is a deviance. I don’t claim to know enough to be able to discern who is correct, or if they are all correct. But I do realize that these issues are so complex that any view that lacks nuance is probably incorrect. One reference for an alternate view is JONAH, an organization that my psychologist friends consider legitimate.

Additionally, homosexuality is not a monolithic attitude. There are varying levels of attraction to the same sex - something that CRJ. Roth addresses but CRS. Roth does not - and it would be wrong not to address that. Someone who is attracted to both sexes and can maintain a healthy relationship with someone of the opposite sex has no ones whatsoever to justify any homosexual behavior.

3. Ulla’s Action

I am not going to continue the discussion about wheter Ulla kissed his sister’s breast or her chest and whether the act was intended as a sexual contact (right after leaving the synagogue) or a non-sexual contact. I will only state that I stand by my original comments and leave it to the interested reader to properly research the topic.

4. Kleptomania and Homosexuality

CRS. Roth argued that kleptomania and homosexuality are different and cannot be compared. I suggested that he failed to make a valid argument. Both kleptomaniacs and (some) homosexuals feel forced to commit forbidden acts and either both must be liable or both must be free from guilt. ZS Berger seems to have been a bit confused on this and assumed that a kleptomaniac is not liable for his theft. Therefore, a homosexual should also not be liable for his illicit behavior. However, a kleptomaniac is liable for his actions.

5. Discrimination in Halakhah

CRS. Roth argued that halakhah does not discriminate against people for characteristics that are beyond their control. I gave a number of examples in which halakhah does, in fact, discriminate in precisely this fashion. ZS Berger ably argued that these laws are no longer actively followed today.

This could be (or it could not be; I don’t know what everyone is doing). However, it is one step to say that "Catholic Israel" (to use Prof. Solomon Schechter’s term) has stopped observing certain laws, among them some that discriminate against the physically handicapped (if I may appropriate this term and use it more literally). It is quite a larger leap - and an as of yet unproven one - to state that all such "discriminatory" laws have been nullified by Catholic Israel. If so, the argument that homosexuality is inborn, like left-handedness and other non-normalities, and therefore cannot lead to halakhic disadvantages is incorrect.

6. Homosexual Non-Intercourse

The self-proclaimed proponent of Apikorsus has taken issue with my comments. Most of her statements are about the general Conservative approach to halakhah, and I will set them aside for now. But she makes one claim that I wish to address:

Similarly, Rabbi Roth does not eliminate the prohibition of homosexual intercourse. Instead, he limits it to anal intercourse between men, rendering other types of homosexual relationships permissible.

That is incorrect because there are issues above and beyond the prohibition against actual intercourse. These include the prohibition against "coming close" to intercourse, which includes fondling and other sexual contact, and a prohibition against fantasizing or contact that may lead to emission of seed. These are all very serious issues. The (incorrect, in my opinion) argument that oral stimulation or the like is permissible for homosexuals leads to the inevitable question of why it is not also permissible for heterosexuals. Is the author of the Apikorsus blog ready to tell teenagers and college students that halakhah permits all forms of hanky-panky as long as they do not have actual intercourse? I think that there is a vast literature contradicting such conclusions.

7. Conclusion

I think that the halakhah is clear on this issue. The practice, though, is much more complicated because rabbis have to deal with people who may not be able to fully observe the halakhah. Navigating these waters is extremely difficult, but so is life.

It is worth noting that a book on this subject just came off the presses. Judaism and Homosexuality: An Authentic Orthodox View by Rabbi Chaim Rapoport. I have not yet read the book but I know that Rabbi Rapoport is a brilliant and insightful man and I have full confidence that his treatment is both comprehensive and sensitive.